From The Law Offices of Brian A. Raphan, P.C.

Social Security

The Social Security Administration has announced a 2.8 percent increase in benefits in 2019, the largest increase since 2012. The change will put an additional $468 anually in the pocket of the average retired beneficiary.

Cost of living increases are tied to the consumer price index, and an upturn in inflation rates and gas prices means recipients get a boost in 2019. The 2.8 percent increase is higher than last year’s 2 percent rise and the .3 percent increase in 2017. The average monthly benefit of $1,422 in 2018 will increase by $39 a month to $1,461 a month for an individual beneficiary, or $468 yearly. The cost of living change also affects the maximum amount of earnings subject to the Social Security tax, which will grow from $128,700 to $132,900.

And there is more good news: Unlike last year’s increase, the additional income should not be entirely eaten up by higher Medicare Part B premiums. The standard monthly premium for Medicare Part B enrollees will increase only $1.50 to $135.50.

For 2019, the monthly federal Supplemental Security Income (SSI) payment standard will be $771 for an individual and $1,157 for a couple.

Most beneficiaries will be able to find out their cost of living adjustment online by logging on to my Social Security in December 2018. While you will still receive your increase notice by mail, in the future you will be able to choose whether to receive your notice online instead of on paper.

Many public programs are available to seniors in need. The New York City Department for the Aging (DFTA) provides a guide to benefits and entitlements for older New Yorkers.

Most of the agencies listed have automated answering systems needing touch tone responses from the caller. There may be a waiting time of up to several minutes, depending on the agency. The time may be longer to reach an operator, if using a rotary telephone.

ACCESSNYC can help improve your access to benefits. ACCESSNYC is a free electronic information and screening tool that allows people of all ages to identify and screen their eligibility for over 30 City, State and Federal human service benefit programs.

Seniors can visit http://www.nyc.gov and search for “Access NYC” to screen their eligibility for several of the programs listed in this booklet. These include SNAP, Medicaid, HEAP, and the Senior Citizen’s Rent Increase Exemption and Veterans’ Exemptions.

Based on information you enter into the system, ACCESS NYC will help fill out some of the applications to make the process easier. It will also provide information on agency office locations that are near you. The tool is available in seven languages: English, Spanish, Chinese, Russian, Korean, Haitian Creole, and Arabic.

In 2018, Social Security recipients will get their largest cost of living increase in benefits since 2012, but the additional income will likely be largely eaten up by higher Medicare Part B premiums.

Cost of living increases are tied to the consumer price index, and an upturn in inflation rates and gas prices means recipients get a small boost in 2018, amounting to $27 a month for the typical retiree. The 2 percent increase is higher than last year’s .3 percent rise and the lack of any increase at all in 2016. The cost of living change also affects the maximum amount of earnings subject to the Social Security tax, which will grow from $127,200 to $128,700.

The increase in benefits will likely be consumed by higher Medicare premiums, however. Most elderly and disabled people have their Medicare Part B premiums deducted from their monthly Social Security checks. For these individuals, if Social Security benefits don’t rise, Medicare premiums can’t either. This “hold harmless” provision does not apply to about 30 percent of Medicare beneficiaries: those enrolled in Medicare but who are not yet receiving Social Security, new Medicare beneficiaries, seniors earning more than $85,000 a year, and “dual eligibles” who get both Medicare and Medicaid benefits. In the past few years, Medicare beneficiaries not subject to the hold harmless provision have been paying higher Medicare premiums while Medicare premiums for those in the hold harmless group remained more or less the same. Now that seniors will be getting an increase in Social Security payments, Medicare will likely hike premiums for the seniors in the hold harmless group. And that increase may eat up the entire raise, at least for some beneficiaries.

For 2018, the monthly federal Supplemental Security Income (SSI) payment standard will be $750 for an individual and $1,125 for a couple.

Additionally, credit card numbers for about 209,000 people were exposed, as was “personal identifying information” on roughly 182,000 customers involved in credit report disputes.

Equifax is one of three nationwide credit-reporting companies that track and rate the financial history of U.S. consumers. It gets its data — without you even knowing — from credit card companies, banks, retailers, and lenders.

Equifax will not be contacting everyone who was affected, but will send direct mail notices to those whose credit card numbers or dispute records were accessed.

The company suggests you sign up for credit file monitoring and identity theft protection. It is providing free service for one year through TrustedID Premier — whether or not you’ve been affected by the breach.

To enroll, go to www.equifaxsecurity2017.com and click on the Check Potential Impact tab. You must submit your last name and last six digits of your Social Security number there. At that point you’ll be given a date when you can return to the site and sign up for the service.

The site says once you’ve submitted your information you will receive a message indicating whether you’ve been affected. But it’s unclear when or how you will receive that message.

The company also recommends that you review account statements and credit reports yourself to check for incidents of fraud. You can request a copy of your credit report online at www.annualcreditreport.com. You are allowed a free copy once a year from each of the three credit reporting agencies: Equifax, Experian, and TransUnion.

If you see any unauthorized activity, immediately report it to your bank and/or credit card company. If you believe you’ve been a victim of identity theft, you should also contact law enforcement.

Another way to protect yourself is by immediately placing fraud alerts on your credit reports, according to credit expert John Ulzheimer, who previously worked at FICO and Equifax. This means that a lender must contact you to verify your identity before it issues credit in your name. You can place an alert on your report for free by contacting one of the credit agencies, which is required to notify the other two. It will last for 90 days and can be renewed.

Since cybercriminals may have accessed what Ulzheimer calls the “crown jewels of information” at Equifax, he also suggests putting a long term freeze on your credit.

A freeze takes your credit report out of circulation. If someone else goes to take out a loan in your name, the lender will not be able to pull your report and therefore cannot extend the credit. If you want to take out a loan yourself, you’ll have to contact the reporting agency to temporarily lift the freeze. Fees to freeze your account vary by state, but commonly range from $5 to $10.

“It’s a pretty extreme measure, but when 143 million people have been exposed like this, I think you have to take it,” Ulzheimer said.

The Federal Trade Commission’s website, www.ftc.gov/idtheft, also offers information about how to protect yourself against fraud.

If you have more questions for Equifax, the company has set up a designated call center at 866-447-7559.

by Liz Weston / NerdWallet

There’s a reason why investment companies want you to think you’ll live that long.

First, you were supposed to die at 85. Then 90. Now 95 and even 100 are common defaults when financial planners tell people how much to save for retirement.

Except that’s nuts.

In the U.S., the typical man at age 65 is expected to live another 18 years. The typical woman, about 20. Yet many financial planners contend we should save as if we’re all going to be centenarians.

“Even when you have a 350-pound guy who smokes?” asks Carolyn McClanahan, a physician and financial advisor at Life Planning Partners in Jacksonville, Florida, who’s downright offended by the notion that good financial planning requires such an obvious lie. Advances in medical science “aren’t happening that fast.”

McClanahan watched lives change in seconds during her stints in emergency rooms and pathology labs. “You come into the emergency room and you die, or I’m telling you that you have cancer,” McClanahan says. “That makes it really hard for me to tell people to save, save, save.”

Investment companies want as much of our money as possible, so it makes sense for them to promote the idea that all or even most of us should aim for triple-digit ages and save accordingly. Plus, financial advisors don’t want to get sued, either by their elderly clients or the children who have to take them in when the old folks run out of cash.

Some retirement saving is essential. Obviously. But saving for a retirement that ends at age 100 means you’ll need a nest egg that’s about 40% larger than what you’d need for a normal life expectancy.

If a 35-year-old wanted to replace 60% of her current $60,000 salary at age 65, she would need about $1.2 million at retirement age if she expects to live to 85. Stretch that to 100, and she’ll need about $1.7 million. (These figures assume 3% average annual inflation and a 7% return on investments. Your mileage may vary.)

Currently most workers (54%) have less than $25,000 saved for retirement, according to the latest survey by the Employee Benefit Research Institute.

What’s the harm?

Encouraging people to save too much can have consequences:

You might not start because you’re discouraged by the vast amounts you supposedly need.
You could put off retirement too long, working when you could have been playing or relishing your good health, which doesn’t last forever.
Once retired, you might stint on the fun stuff because you’re so worried about running short.
“I definitely have concerns that many advisors are being way too conservative,” says Michael Kitces, a certified financial planner and partner at Pinnacle Advisory Group in Columbia, Maryland.

Kitces points out that while there’s a 70% chance that at least one member of a married couple will make it to 85, the odds are only 20% either partner will make it to 95, and even lower that anyone will see 100.

“Most of our improvements in life expectancy are coming from the decline in child mortality,” Kitces says. “The actual survival rate of people in their 80s and 90s is not increasing very fast.”

Some of us will make it to 100, but that doesn’t mean everybody faces the same odds. If you’re a fit, healthy college graduate with an above-average income, a 100-year life span may be possible. If you smoke, have high blood pressure or high blood sugar, or are overweight or obese, you’re less likely to make it to 85. Lower incomes and education levels are also associated with shorter life spans.

McClanahan plans for 100-year life spans for her clients who take good care of their health and who have plenty of money. She predicts average life spans for those with average health. If clients have health challenges or not enough money to last a typical retirement, she sends them to a life expectancy calculator, Livingto100.com. Then she and the clients discuss the results to see how they want to handle the possibility of outliving their savings. (Run the numbers on multiple scenarios for yourself with NerdWallet’s Retirement Calculator.)

Uncertainty about longevity is just one of many unknowns in financial planning, says Bob Veres, a financial planning industry consultant and publisher of the trade publication Inside Information. So-called “safe” withdrawal rates of 4% annually may actually be too conservative in most markets, Veres notes. Also, people often spend less as they age, which makes planners’ typical assumptions that spending will increase with inflation each year too conservative.

Cautious assumptions may stave off lawsuits, Veres says, but they “diminish the spending capacity of people who retire today.”

“I think only the client knows whether the inconvenience of spending less in retirement is more or less painful than the risk of cutting back drastically later in retirement if the markets don’t cooperate,” Veres said.

How to save for an uncertain future

Working longer, saving more or planning to spend less in retirement are the typical prescriptions when people aren’t saving enough. But there are a few other ways to help insulate yourself in case you guess wrong and wind up living longer than you plan for:

Put off claiming Social Security. This means a bigger benefit from an income stream that you can’t outlive. Your check will be about one-third larger if you wait until at least your full retirement age (currently 66, rising to 67 for those born in 1960 and after) instead of starting at 62. Delay until 70, and your benefit would be more than 75% higher than at 62.

Consider an annuity. You give an insurance company a chunk of money and get a stream of monthly checks that can last for life. A 65-year-old man could buy a $100,000 immediate annuity, where payments start right away, and get about $530 a month without inflation protection, or around $380 with increases tied to the Consumer Price Index, according to ImmediateAnnuities.com, an annuity marketplace. Another option is a longevity annuity, where you hand over the money but payments don’t kick in until a later age, often 85.

Investigate a reverse mortgage. You can turn your home equity into cash, but you don’t have to repay the loan until you die, sell or move out. Payments could start early in your retirement so that you don’t have to tap as much of your nest egg. Or you could set up a reverse mortgage line of credit that you would only use if markets tanked, to give your investments time to recover. Or you could keep a reverse mortgage as your last-resort option, turning to it after you’ve exhausted your other assets.

Like this:

There are a lot of misconceptions surrounding the Social Security system. Here are four common myths and the truth about how Social Security works and its future prospects.

Myth 1: You Should Collect Benefits EarlyThis is one of the biggest Social Security myths. In 2015, more than half of Social Security recipients began collecting benefits before their full retirement age (66 for those born between 1943 and 1954), potentially costing themselves thousands of dollars in additional benefits. If you take Social Security between age 62 and your full retirement age, your benefits will be permanently reduced to account for the longer period you will be paid.

On the other hand, if you delay taking retirement, depending on when you were born your benefit will increase by 6 to 8 percent for every year that you delay, in addition to any cost of living increases. There are a lot of factors that go into the decision as to when to take Social Security benefits, but if possible it is usually better to wait until your full retirement age or older.

Myth 2: Your Money Goes into an Account with Your Name on It

When you pay into Social Security, the money is not set aside in a separate account, as with a 401(k) or IRA. Instead, your contributions are used to pay current recipients. When you start receiving benefits, people paying into the system will be paying your benefits.

Myth 3: Social Security Will Be Out of Money Soon

Many young people believe the Social Security system will run out of money before they have a chance to collect anything. Currently, the Social Security trustees predict that the trust fund will run out of money in 2034. Politically, it seems unlikely that Congress and the President would let this happen. Changes will likely be made to the system by either raising taxes (such as by lifting the cap on income subject to Social Security tax), reducing benefits for high-income individuals, increasing the retirement age, or doing something else that will allow Social Security to be fully funded. However, even if the trust dries up and there isn’t enough money to pay all the promised benefits, people will still be paying into the system and Social Security will be able to pay at least 75 percent of benefits.

Myth 4: If You Haven’t Worked, You Cannot Collect Benefits

If you haven’t worked outside of the home, you will not be able to collect Social Security benefits on your own record, but you may be able to collect them based on your spouse or ex-spouse’s record. Spouses are entitled to collect as much one half of a worker’s retirement benefit. This rule applies to ex-spouses as well, as long as the marriage lasted at least 10 years and the spouse applying for benefits isn’t remarried.

One little-known Social Security retirement benefits rule is the so-called “do-over rule.” Under this rule, an individual 62 years or older can start collecting benefits but stop the benefits within 12 months of the start, repay the benefits collected, and then still be eligible for their higher benefit amount when they collect at full retirement age or older.What’s the advantage if the benefits must all be immediately repaid? The strategy can work as a short-term interest-free loan. It makes sense, for example, in cases where an individual has a need for income in the immediate short term, due to an emergency such as a sudden loss of employment, but anticipates income within the year that would allow for full repayment, i.e., finding a new job or collecting a pension. Many individuals in their early 60s have most of their assets tied up in retirement and investment accounts, and withdrawals from these accounts would trigger hefty penalties. After “emergency” liquid funds run out, the do-over rule offers a short-term solution. In addition, by drawing on a Social Security “loan” instead of investments, you allow your investments to continue growing.

What if you are unable to pay back the benefits after the 12 months are up? You may still be able to suspend your benefits and increase your ultimate pay-out amount. For example, if you start collecting at 62 but no longer need the income at 66, you could suspend benefits until 70. Then, between the ages of 66 and 70, you would earn delayed retirement credits which would increase the ultimate benefit amount when you collect at age 70.

(Note that up until December 2010, it was possible for you to collect benefits and repay at any time. The law has since changed so that you are limited to a 12-month pay back period. You are also only allowed one “do-over.”)

Full retirement age (also called “normal retirement age”) had been 65 for many years. However, beginning with people born in 1938 or later, that age gradually increases until it reaches 67 for people born after 1959.

The 1983 Social Security Amendments included a provision for raising the full retirement age beginning with people born in 1938 or later. The Congress cited improvements in the health of older people and increases in average life expectancy as primary reasons for increasing the normal retirement age. Click the image below for the “FULL RETIREMENT CALCULATOR” and get more information for the SSA.

As previously reported, the Social Security Administration (SSA) recently instituted a nationally uniform procedure for review of special needs trusts for Supplemental Security Income (SSI) eligibility, routing all applications that feature trusts through Regional Trust Reviewer Teams (RTRTs) staffed with specialists who will review the trusts for compliance with SSI regulations.

The SSA has also released its Trust Training Fact Guide, which will be used by the RTRTs and field offices when they evaluate special needs trusts. In an article in the July/August 2014 issue of The ElderLaw Report, New Jersey attorney Thomas D. Begley, Jr., and Massachusetts attorney Neal A. Winston, both CELAs, discuss the 31-page guide in detail and caution that while it is a significant step forward in trust review consistency, it contains “a few notable omissions or terminology that might cause review problems.” Following is the authors’ discussion of the problematic areas:

• Structured Settlements. The guide states that additions/augmentations to a trust at/after age 65 would violate the rule that requires assets to be transferred to the trust prior to the individual attaining age 65. It does not mention that the POMS specifically authorizes such payments after age 65, so long as the structure was in place prior to age 65. [POMS SI 01120.203.B.1.c].

• First-/Third-Party Trust Distinction. Throughout the guide, there are numerous references to first-party trust terms or lack of terms that would make the trust defective and thus countable. These references do not distinguish between the substantial differences in requirements for first-party and third-party trusts.

• Court-Established Trusts/Petitions. This issue is more a reflection of an absurd SSA policy that is reflected accurately as agency policy in the guide, rather than an error or omission in the guide itself. This section, F.1.E.3, is titled “Who can establish the trust?” The guide states that creation of the trust may be required by a court order. This is consistent with the POMS. It would appear from the POMS that the court should simply order the trust to be created based upon a petition from an interested party. The potential pitfall described by the guide highlights is who may or may not petition the court to create a trust for the beneficiary. It states that if an “appointed representative” petitions the court to create a trust for the beneficiary, the trust would be improperly created and, thus, countable. Since the representative would be considered as acting as an agent of the beneficiary, the beneficiary would have improperly established the trust himself.

In order for a court to properly create a trust according to the guide, the court should order creation of a trust totally on its own motion and without request or prompting by any party related to the beneficiary. If so, who else could petition the court for approval? The plaintiff’s personal injury attorney or trustee would be considered an “appointed representative.” Would a guardian ad litem meet the test under the guardian creation authority? How about the attorney for the defendant, or is there any other person? If an unrelated homeless person was offered $100 to petition the court, would that make the homeless person an “appointed representative” and render the trust invalid? The authors have requested clarification from the SSA and are awaiting a response.

Until this issue is resolved, it might be prudent to try to have self-settled special needs trusts established by a parent, grandparent, or guardian whenever possible.

• Medicaid Payback/Administrative Fees and Costs. Another area of omission involves Medicaid reimbursement. The guide states that “the only items that may be paid prior to the Medicaid repayment on the death of the beneficiary of the trust are taxes due from the trust at the time of death and court filing fees associated with the trust. The POMS, [POMS SI 01120.203.B.1.h. and 203B.3.a], specifically states that upon the death of the trust beneficiary, the trust may pay prior to Medicaid reimbursement taxes due from the trust to the state or federal government because of the death of the beneficiary and reasonable fees for administration of the trust estate such as an accounting of the trust to a court, completion and filing of documents, or other required actions associated with the termination and wrapping up of the trust.

While noting that the guide, in coordination with training, “is a marked improvement for program consistency for trust review,” Begley and Winston caution advocates that “the guide should be considered as a summarized desk reference and training manual and not a definitive statement of SSA policy if inconsistent with the POMS.”

While residents of nursing homes have no fewer rights than anyone else, the combination of an institutional setting and the disability that put the person in the facility in the first place often results in a loss of dignity and the absence of proper care.

As a result, in 1987 Congress enacted the Nursing Home Reform Law that has since been incorporated into the Medicare and Medicaid regulations. In its broadest terms, it requires that every nursing home resident be given whatever services are necessary to function at the highest level possible. The law gives residents a number of specific rights:

Residents have the right to be free of unnecessary physical or chemical restraints. Vests, hand mitts, seat belts and other physical restraints, and antipsychotic drugs, sedatives, and other chemical restraints are impermissible, except when authorized by a physician, in writing, for a specified and limited period of time.

To assist residents, facilities must inform them of the name, specialty, and means of contacting the physician responsible for the resident’s care. Residents have the right to participate in care planning meetings.

When a resident experiences any deterioration in health, or when a physician wishes to change the resident’s treatment, the facility must inform the resident, and the resident’s physician, legal representative or interested family member.

The resident has the right to gain access to all his or her records within one business day, and a right to copies of those records at a cost that is reasonable in that community. The facility must explain how to examine these records, or how to transfer the authority to obtain records to another person.

The facility must provide a written description of legal rights, explaining state laws regarding living wills, durable powers of attorney for health care and other advance directives, along with the facility’s policy on carrying out these directives.

At the time of admission and during the stay, nursing homes must fully inform residents of the services available in the facility, and of related charges. Nursing homes may charge for services and items in addition to the basic daily rate, but only if they already have disclosed which services and items will incur an additional charge, and how much that charge will be.

The resident has a right to privacy, which is a right that extends to all aspects of care, including care for personal needs, visits with family and friends, and communication with others through telephone and mail. Residents thus must have areas for receiving private calls or visitors so that no one may intrude and to preserve the privacy of their roommates

Residents have the right to share a room with a spouse, gather with other residents without staff present, and meet state and local nursing home ombudspersons or any other agency representatives. They may leave the nursing home, or belong to any church or social group. Within the home, residents have a right to manage their own financial affairs, free of any requirement that they deposit personal funds with the facility.

Residents also can get up and go to bed when they choose, eat a variety of snacks outside of meal times, decide what to wear, choose activities, and decide how to spend their time. The nursing home must offer a choice at main meals, because individual tastes and needs vary. Residents, not staff, determine their hours of sleep and visits to the bathroom. Residents may self-administer medication.

Residents may bring personal possessions to the nursing home such as clothing, furnishings and jewelry. Residents may expect staff to take responsibility for assisting in the protection of items or locating lost items, and should inquire about facility policies for replacing missing items. Residents should expect kind, courteous, and professional behavior from staff. Staff should treat residents like adults.

Nursing home residents may not be moved to a different room, a different nursing home, a hospital, back home or anywhere else without advance notice, an opportunity for appeal and a showing that such a move is in the best interest of the resident or necessary for the health of other nursing home residents.

The resident has a right to be free of interference, coercion, discrimination, and reprisal in exercising his or her rights. Being assertive and identifying problems usually brings good results, and nursing homes have a responsibility not only to assist residents in raising individual concerns, but also to respond promptly to those concerns.

Nursing Home Myths and Realities

Myth

Reality

Medicaid does not pay for the service you want.

Medicaid residents are entitled to the same service as other residents.

Only staff can determine the care you receive.

Residents and family have the right to participate in developing a care plan.

Staff cannot accommodate individual schedules.

A nursing home must make reasonable adjustments to honor residents’ needs and preferences.

You need to hire private help.

A nursing home must provide all necessary care.

Restraints are required to prevent the resident from wandering away.

Restraints cannot be used for the nursing home’s convenience or as a form of discipline.

Family visiting hours are restricted.

Family members can visit at any time of day or night.

Therapy must be discontinued because the resident is not progressing.

Therapy may be appropriate even if resident is not progressing; Medicare may pay even without current progress.

You must pay any amount set by the nursing home for extra charges.

A nursing home may only require extra charges authorized in the admission agreement.

The nursing home has no available space for residents or family members to meet.

A nursing home must provide a private space for resident or family councils.

The resident can be evicted because he or she is difficult or is refusing medical treatment.